Page last updated at 22:58 GMT, Tuesday, 28 October 2008

Choosing an executor for your Will

Money Talk
By Susan Midha
Adams & Remers Solicitors

Susan Midha
Susan Midha says a death in the family can expose family rivalries

If you die without a will - intestate, as the legal jargon puts it - the government decides, on the basis of the intestacy rules, who benefits from your estate.

The news that these rules will be updated in England and Wales from February 2009 may cause some people to think that there is no need to make a will.

If you are one of them, you may want to think again.

The intestacy rules are still inflexible and do not enable you to benefit charities or cohabitees, or decide who gets the grandfather clock.

And nor do they allow you to chose your executors.

Choosing your executors carefully, though, may well be one of the biggest gifts that you can make to your heirs.

Stress or harmony?

Good decisions made by executors can reflect financially, for example on the amount of tax paid on the estate.

Your considered choice of executors can make all the difference

They can affect less easily measurable benefits, like the speed with which the estate is dealt with, and the stress generated or harmony promoted in what is invariably a difficult time.

Most people making a will say that they want to leave everything simple and clear and that they do not want their family "falling out" after their death.

But it is a sad truth that family fault lines have a tendency to appear at Christmas, on divorce, and on death.

So on death, your considered choice of executors can make all the difference.

This is increasingly the case in view of the fact that so many families now include step-parents, step-children or half-brothers and sisters.

Wicked and grasping

The death of the person who binds those families together is often the trigger for rivalries and jealousies to come to the surface.

Most solicitors will be able to cite examples of the wicked step-mother or the grasping step-children, but sometimes the tensions are more subtle.

I once mediated a problem with the administration of an estate where the step-mother and the deceased's daughter from a previous marriage were both executors but were at loggerheads.

The original cause of offence was a dispute as to how many cars should be ordered for the funeral cortege - and the relationship went rapidly downhill from there.

Another case involved two brothers who had always got on well.

But the administration of the estate was so badly handled by one of them that two court cases and tens of thousands of pounds of costs later, the brothers do not speak to each other - except through their solicitors.

Time and trouble

When choosing an executor it is important to look at the practicalities of what you are trying to achieve under the will.

Judge's wig
Cases can prove to be extremely successful

You need to ensure that the people who are going to carry out those wishes have got the attributes needed to do it.

Honesty and conscientiousness are important, but if you are appointing more than one executor - and often that's a good idea - they also need to be team players.

They need to be able to be able to make decisions about financial and other matters, in the interest of the beneficiaries as a whole and not just themselves.

They need to have the time and the inclination to deal with paperwork, the extent of which should not be underestimated.

Simply going through someone's papers to find out what is relevant can take an inexperienced person, who is not entirely sure what may be important and what is not, hours, sometimes days.

Not a great way to spend one's weekend or meagre holiday entitlement.

Things to do

Unless solicitors are acting, the grant of probate has to be applied for by way of an interview at the probate registry - not by post.

When the time comes, is it fair to ask someone who does not benefit under the will, and cannot charge for their time, to deal with it?

And dealing urgently with investments, particularly in times of market volatility, or selling a house for a price that all the beneficiaries are happy with can involve very significant amounts of time.

If it won't sell, keeping it insured and protecting it from being vandalised and flooded by frozen pipes are important.

And then there is all the time on the phone and email explaining to other members of the family what is being done and explaining why it is all taking so long.

The executors you appoint also need the ability to recognise when they need to take advice.

This is particularly important with regard to questions of valuations and inheritance tax, since on estates above 312,000 there may be tax to pay.

Your executors' understanding of the tax system, not just inheritance tax, can minimise the amount the estate pays to the government.

Legal detail

The executors also need to pay attention to detail and have an understanding that they're dealing with legal issues that aren't always what they seem.

If the will says "I give everything equally to my two sons" and one of the sons dies before his father, what happens to his share?

Or if the will says "I give everything equally between my new husband and my children from my first marriage", do they all get the same amount?

The answers may seem obvious to you, but law and tax have never been areas where common sense prevailed.

Most people think in terms of appointing their beneficiaries as executors - often their wife, husband, civil partner and children - and let them sort it out.

But what happens if they do not get on? Well, that is ok; let's ask a neutral member of the family, or a friend, to be an executor.

They will almost certainly be honoured to be asked, and when the will is being made, will agree to being appointed.

But when the time comes, is it fair to ask someone who does not benefit under the will, and cannot charge for their time, to deal with it?

Isn't it rather like asking a friend with little or no plumbing experience to install a new bathroom for you, free of charge?

Professional executors

An option worth exploring is to appoint professional executors, whose fees, often based on a percentage of the value of the estate are payable out of the estate.

Different professionals charge in different ways but, as the broadest rule of thumb, 2% to 4% would not be unusual.

A careful choice of professional executors can save time, hassle and tax.

There are different types of professional executors: solicitors, accountants, banks.

Only solicitors, and trust corporations, currently have the ability to make probate applications by post.

And solicitors alone are governed by rules which limit their fees to what is fair and reasonable, and also have full professional indemnity and compensation scheme.

Probably the main area where professional executors can help is in being detached, so that they can make decisions - sometimes difficult ones - in the interests of the beneficiaries, without having any vested interests themselves.

The will

Whether you appoint family or friends or professionals, there are steps during your lifetime to keep costs down and speed up the administration of one's estate.

Ensuring that the family know that you have made a will and where it is kept, keeping a note of where insurance policies, share certificates or the deed of the house are, and the telephone numbers of your solicitor, accountant or financial advisor will help.

But beware the temptation to simplify matters by making sizable gifts.

These can sometimes have unexpected tax implications, may still need to be notified to HM Revenue and Customs on your death and cause complications in terms of distributing funds under your will or on your intestacy.

Choosing an executor may not be the most obvious reason for making a will, but the right choice may have a very significant impact on the tenor of relationships in the family after you have gone.

You should note that Northern Ireland has already updated its rules and Scotland has a different system.

The opinions expressed are those of the author and are not held by the BBC unless specifically stated. The material is for general information only and does not constitute investment, tax, legal or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.

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